The delicate constitutional balance between the discretion of the Governor and the democratic right of the single largest party to attempt to form the government has once again come into focus in Tamil Nadu, where TVK President Vijay met Governor Rajendra Vishwanath Arlekar for the second consecutive day on Thursday amid continuing uncertainty over who should be invited to form the next government.
The development has revived an old constitutional debate that has repeatedly reached the Supreme Court over the past three decades: Can a Governor insist on a party proving its majority before inviting it to form the government, or should the single largest party automatically get the first opportunity and prove its strength on the House floor later?
The response of the constitutional courts has never been entirely one-sided.
basic constitutional questions
While the Supreme Court has consistently held that a Governor cannot conduct a “floor test in the Raj Bhavan”, it has equally held that the Governor is empowered, and perhaps constitutionally obliged, to make a limited “prima facie” assessment of whether a contender is likely to receive majority support in the Assembly.
Vijay’s Tamilaga Vetri Kazhagam (TVK), which is contesting its first assembly election, has emerged as the largest party with 108 seats in the 234-member assembly. With the support of five Congress MLAs, the party claims the support of 113 MLAs, still less than half the figure of 118.
According to people familiar with the matter, Governor Arlekar reiterated during Thursday’s meeting that Vijay will have to demonstrate the support of 118 MLAs before he can be formally invited to form the government.
The governor’s office also reportedly sought clarity on which additional parties were willing to support TVK, especially since the party itself had staked its claim as part of a broader coalition arrangement.
The jury is not out on whether this is a prima facie assessment or more.
first principles
The basic principles were rejected in the Supreme Court’s landmark judgment in SR Bommai v. Union of India (1994), where the Court held that the “proper forum” to test the majority is the floor of the House, and not the subjective satisfaction of the Governor.
The judgment also said that the Governor can invite “the leader of the party having majority in the House or the largest party/group” to form the government, indicating that the single largest party remains a constitutionally recognized contender in the split judgment.
prima facie warning
In the Constitution Bench judgment in Rameshwar Prasad v. Union of India (2006), the Supreme Court clarified that the role of the Governor at the government formation stage is limited to a “prima facie” assessment.
The court said that at the stage of government formation, the Governor’s satisfaction is “only prima facie, not conclusive”, indicating that the Raj Bhavan is not expected to take a decisive decision on majority support, but the question cannot be completely ignored either.
This “prima facie” principle again assumed central importance in 2019 during the Maharashtra political crisis of Shiv Sena versus Union of India, where rival political formations questioned the Governor’s decision to swear in the government amid competing claims.
Before the Supreme Court, the parties challenging the Governor’s decision argued that constitutional morality requires satisfaction only to a certain extent based on objective material such as letters of support, with the final determination necessarily being left to the floor test.
The Supreme Court ultimately ordered an immediate floor test, reiterating the now established constitutional principle that legislative majority can be decisively determined only inside the Assembly. Yet, importantly, the Court did not hold that Governors are prevented from asking for any material before extending invitations.
content testing
Later, in Subhash Desai v. Union of India (2023), which arose out of the split in Shiv Sena and the subsequent Maharashtra government formation dispute, the Supreme Court directly examined the validity of the Governor’s decision to invite Eknath Shinde to form the government. The court ultimately upheld the Governor’s decision, noting that the invitation was extended after the BJP formally extended its support to Shinde.
The Constitution bench said, “On the basis of the material before it, that is, the communication received, the Governor invited Mr. Shinde to take the oath of office, and directed him to prove his majority in the House within a period of seven days…Thus, the Governor’s decision to invite Mr. Shinde to form the government was justified.”
The court’s emphasis on the phrase “on the basis of the material before it” assumes significance in the present Tamil Nadu context. It suggests that although a Governor cannot conclusively determine majority support outside the Assembly, the office is still entitled to examine objective material, such as letters of support and coalition claims, before deciding who should be invited to form the government.
Why does Tamil Nadu fall in the gray zone?
This distinction becomes particularly relevant in the situation of Tamil Nadu.
Unlike the cases of a clear post-poll alliance crossing the majority mark before staking claim, the TVK is currently numerically less than half the mark even with the support of the Congress.
While parties like VCK, CPI and MNM have publicly expressed support for Vijay and urged the Governor to invite him to form the government, formal letters of support from enough MLAs to cross 118 are yet to emerge.
This creates a gray area where both competing principles – the right of the largest party to attempt to form the government and the obligation of the Governor to ensure a viable contender, intersect uneasily.
The Sarkaria Commission recommendations, repeatedly endorsed by the Supreme Court, recognize the “largest single party staking a claim with the support of others” as one of the preferred contenders in a hung assembly. But the recommendations also consider some demonstrable support, even if temporary, before an invitation can be extended.
past flashpoint
India’s constitutional history offers many examples where governors have adopted different standards while inviting parties with divided verdicts to form governments.
In 1997, Romesh Bhandari, the then Governor of Uttar Pradesh, refused to invite the BJP despite it being the largest party, expressing doubts over the stability of the proposed government led by Kalyan Singh. Singh was confident of garnering support from additional MLAs once invited, but Raj Bhavan remained unconvinced.
Yet, barely a year later, the same Governor, after submitting letters of support from non-BJP parties, administered the oath to Jagdambika Pal, whose Democratic Congress Party had only 22 MLAs in the House of 424. The contrasting views highlight how governor’s discretion often varies depending on political circumstances.
A similar controversy had arisen after the 2005 Jharkhand Assembly elections. BJP emerged as the largest party with 30 seats, while JMM got 17 seats. Despite this, the then Governor Syed Sibte Razi invited Shibu Soren and the UPA alliance to form the government with the claim that they had majority support.
The decision drew intense constitutional criticism as the BJP-led NDA also claimed it had the numbers. Soren was ultimately unable to prove majority and resigned within days, clearing the way for Arjun Munda to take power.
These episodes underline that no constitutional convention has uniformly governed hung assemblies. Questions over the timing of the swearing-in ceremony, the adequacy of letters of support and the timing of the floor test have repeatedly created constitutional conflicts.
middle path
Perhaps this is why courts have repeatedly insisted on a careful middle path.
The Governor cannot insist on a decisive majority demonstration like a floor test before inviting a contender. But equally, the office is not expected to function merely as a ceremonial conveyor belt, automatically inviting every single biggest party, regardless of the number available.
Instead the constitutional design favors limited prima facie investigation followed by a quick trial.
For now, the developments in Tamil Nadu underline how recurring hung verdicts in India continue to test constitutional traditions that remain partly codified in judgments and partly dependent on political discretion.
Whether Vijay ultimately achieves the numbers or not, the churning around Lok Bhavan once again highlights that in India’s parliamentary democracy, government formation is often shaped by constitutional convention as well as the constitutional text. It also underlines how the governor’s discretion is involved in the invitation to form a government – ​​an area that has repeatedly drawn criticism over perceived political closeness and uneven standards in dealing with rival claimants to power.
